Offences Against Life in Marbella

The three modalities of alevosía

Case law repeatedly distinguishes three executional modalities of an alevosía (treacherous/defenseless-victim) nature, each with its own evidentiary requirements:

"...a) alevosía proditoria, equivalente a la traición... b) alevosía súbita o inopinada, llamada también 'sorpresiva'... c) alevosía de desvalimiento, que consiste en el aprovechamiento de una especial situación de desamparo de la víctima."

(The Supreme Court distinguishes: a) proditory alevosía, equivalent to betrayal; b) sudden or unexpected alevosía, also called "surprise" alevosía; and c) alevosía of defenselessness, consisting of taking advantage of a special situation of the victim's helplessness.) Proditory alevosía requires proof of an ambush, snare, or trap previously arranged by the perpetrator. Sudden or unexpected alevosía — the modality with the greatest practical application — focuses on the unforeseen, lightning-fast, and abrupt character of the attack, even where the perpetrator was in the victim's sight, provided the victim did not expect the aggression and could not prepare against it. And alevosía of defenselessness requires the conscious exploitation of a situation of absolute helplessness — young children, sleeping persons, unconscious persons, or persons who are severely incapacitated — without it being necessary that the perpetrator deliberately sought out that situation, it being sufficient that they take advantage of it at the moment of acting. More recent case law further recognizes a "cohabitation" modality, applied when the surprise attack is carried out against someone who is at ease and sheltered within their own home, in the company of a person with whom they have a relationship of trust. Determining precisely which of these modalities applies — and whether all of its objective and subjective elements genuinely concur — is the central focus of our defense whenever this aggravating circumstance is alleged.

Ensañamiento: two cumulative elements, independent of alevosía

Ensañamiento under Article 139.1.3 of the Criminal Code requires the cumulative concurrence of two elements that case law requires to be proven autonomously:

"...un elemento objetivo constituido por la causación de males objetivamente innecesarios para alcanzar el resultado típico... y otro subjetivo, que el autor debe ejecutar, de modo consciente y deliberado, unos actos... dirigidos... al aumento del sufrimiento de la víctima."

(The Supreme Court held that ensañamiento requires an objective element — the infliction of harm objectively unnecessary to achieve the typical result — and a subjective element, whereby the perpetrator must consciously and deliberately carry out acts aimed at increasing the victim's suffering.) The objective element requires that the acts causing additional pain be clearly superfluous in relation to causing death, and that the victim remain conscious to perceive them: if death occurred with the first blows or wounds, subsequent acts — however numerous — cannot support a finding of ensañamiento, since they generated no additional suffering. The subjective element requires a genuine, deliberate will to cause that extra suffering, which case law has defined as a "reflective cruelty" incompatible with the mere homicidal intent already consummated in the decision to kill. The correct distinction between the number of wounds necessary to ensure the act's execution and those that were truly superfluous and aimed at prolonging suffering is, consequently, a matter that is essentially one of forensic expert evidence, which we submit to adversarial scrutiny in every proceeding of this nature.

The regime of reviewable permanent imprisonment: requirements for its suspension

Article 140 of the Criminal Code reserves reviewable permanent imprisonment for the most serious cases of murder: a victim under sixteen years of age or especially vulnerable owing to age, illness, or disability; murder subsequent to an offense against sexual freedom; commission by a member of a criminal organization or group; and repeated or serial murders. Article 92 of the Criminal Code sets out the requirements for suspending its enforcement: that the convicted person has generally served twenty-five years of effective imprisonment — a term raised to thirty-five years in the most serious cases under Article 78 bis of the Criminal Code — that they have been classified in the third penitentiary grade, which in turn requires a minimum of fifteen years of effective service; and that the court can base, in light of the convicted person's personality, their record, the circumstances of the offense, and prison-progress reports, an individualized and favorable prognosis of social reintegration. The Constitutional Court has declared this regulation to be in conformity with the Constitution, precisely because it provides for this periodic-review mechanism guaranteeing the convicted person a horizon of freedom, although the first effective review of a sentence imposed under this regime will not take place in Spain until after the year 2040.